No. 95-230
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1995
JOYCE L. WALMER, PETITIONER
v.
UNITED STATES DEPARTMENT OF DEFENSE
AND DEPARTMENT OF THE ARMY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
DREW S. DAYS, III
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
ANTHONY J. STEINMEYER
Attorney
Department of Justice
Washington D.C. 20530
(202)514-2217
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QUESTION PRESENTED
Petitioner, an Army officer, was honorably dis-
charged based upon her stipulation that she had com-
mitted homosexual acts, including acts punishable as
criminal sodomy under the Uniform Code of Military
Justice (10 U.S.C. 925), in violation of the Army's
former regulation governing homosexual acts. The
question presented is whether, in seeking a prelim-
inary injunction to prevent her discharge, petitioner
failed to demonstrate a likelihood of success on her
claim that her discharge violated the equal protection
guarantee of the Fifth Amendment.
(I)
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TABLE OF CONTENTS
Page
Opinions below . . . . 1
Jurisdiction . . . . 1
Statement . . . . 2
Argument . . . . 5
Conclusion . . . . 10
TABLE OF AUTHORITIES
Cases:
Ben-Shalom v. Marsh, 881 F.2d 454(7th Cir.
1989), cert. denied, 494 U.S. 1004 (1990) . . . . 6
Brotherhood of Locomotive Firemen v. Bangor
& Aroostock R.R., 389 U.S. 327 (1967) . . . . 8
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432 (1985) . . . . 7
Dronenburg v. Zech, 741 F.2d 1388(D.C. Cir.
1984) . . . . 6
Goldman v. Weinberger, 475 U.S. 503 (1986) . . . . 8
Heller v. Doe, 113 S. Ct. 2637 (1993) . . . . 4-5, 7
Meinhold v. Department of Defense, 34 F.3d
1469 (9th Cir. 1994) . . . . 6, 7
Pruitt v. Cheney, 963 F.2d 1160(9th Cir.),
cert. denied, 113 S. Ct. 655 (1992) . . . . 4-5, 6, 7
Rich v. Secretary of the Army, 735 F.2d 1220
(10th Cir. 1984) . . . . 5, 6
Rostker v. Goldberg, 453 U. S. 57(1981 ) . . . . 8
Sampson v. Murray, 415 U.S. 61 (1974) . . . . 8
Steffan v. Perry, 41 F.3d 677(D.C. Cir. 1994). 6
United States v. Harris, 8 M.J. 52(CMA
1979) . . . . 3
Woodward v. United States, 871 F.2d 1068
(Fed. Cir. 1989), cert. denied, 494 U.S. 1003
(1990) . . . . 6
(III)
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IV
Page
Constitution, statutes and regulation:
U.S. Const.:
Art. I, 9, Cl. 3 (Bill of Attainder Clause) . . . . 4
Amend. I . . . . 4
Amend. V . . . . 4
Uniform Code of Military Justice:
10 U.S.C. 654 . . . . 2
10 U.S.C. 654(a) . . . . 8
10 U.S.C. 654(b) . . . . 9
10 U.S.C. 654(b)(1) . . . . 8, 9
10 U.S.C. 654(f)(3) . . . . 9
10 U.S.C. 925 . . . . 3, 7
Army Regulation 635-100 (1992) . . . . 2, 3
XIV Par. 5-51a . . . . 2, 9
Glossary . . . . 3, 9
Miscellaneous:
R. Stern, E. Gressman, S. Shapiro & K. Geller,
Supreme Court Practice (7th ed. 1993) . . . . 8
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In the Supreme Court of the United States
OCTOBER TERM, 1995
No. 95-230
JOYCE L. WALMER, PETITIONER
v.
UNITED STATES DEPARTMENT OF DEFENSE
AND DEPARTMENT OF THE ARMY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 30a-
43a) is reported at 52 F.3d 851. The opinion of the
district court (Pet. App. 2a-28a) is reported at 835 F.
Supp. 1307.
JURISDICTION
The judgment of the court of appeals (Pet. App. 29a)
was entered on April 4, 1995. A petition for rehearing
was denied on April 25, 1995. Pet. App. 43a-44a. The
petition for a writ of certiorari was filed on July 24,
1995. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
(1)
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2
STATEMENT
1. In January 1992, petitioner was a major in the
United States Army stationed at Fort Leavenworth.
Kansas. At that time, a civilian woman told the Army
that she and petitioner had had a homosexual relation-
ship while petitioner was in the Army. Pet. App. 3a.
After investigating that allegation, the Army began
proceedings to discharge petitioner under Army
Regulation (AR) 635-100 for engaging in homosexual
acts. Id. at 3a-4a.1 The version of AR 635-100 then in
effect required separation of any officer who "engaged
in, attempted to engage in, or solicited another to
engage in a homosexual act or acts," subject to
exceptions that petitioner stipulated (id. at 5a) do not
apply in this case. 2.
___________________(footnotes)
1. After the administrative proceedings ended in this case,
Congress enacted the current policy regarding military service
by homosexuals. See 10 U.S.C. 654. As petitioner concedes (Pet.
14), the current policy is not at issue in this case.
2. AR 635-100 XIV Par. 5-51a provided in pertinent part that
"[a]n officer shall be separated" if he or she "has engaged in,
attempted to engage in, or solicited another to engage in a
homosexual act or acts unless there are approved further
findings that- -
(1) Such conduct is a departure from the officer's usual
and customary behavior.
(2) Such conduct under all circumstances is unlikely to
recur because it was solely the result of immaturity,
intoxication, coercion, or a desire to avoid military service.
(3) Such conduct was not accomplished by use of force,
coercion, or intimidation by the officer during a period of
military service.
(4) Under the particular circumstances of the case, the
officer's continued presence in the service as an officer of
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3
Petitioner elected to appear at a heating before an
Army Board of Inquiry, where she was represented
by both military and civilian counsel. Pet. App. 5a. At
the hearing, the government introduced a stipulation
of fact signed by petitioner, her counsel, and govern-
ment counsel. Ibid. In it, petitioner "admit[ted] that
she has in the past engaged in homosexual acts with"
the woman who reported their relationship. Ibid.
Before admitting the stipulation into evidence, the
Board determined that petitioner had read and
discussed the stipulation with her counsel before
signing it and that she wished to enter into it. Id. at
6a. The government also introduced an exhibit
describing the expected testimony of the woman who
had reported having a homosexual relationship with
petitioner. Admin. Rec. 55. In that exhibit, the
parties stipulated (ibid.) that the woman would have
testified that she and petitioner had. over an extended
period of time, engaged in homosexual acts, including
acts that constitute criminal sodomy under the
Uniform Code of Military Justice (see 10 U.S.C. 925;
United States v. Harris, 8 M.J. 52 (CMA 1979)).
Petitioner stated at the hearing that "she had read
and discussed [this exhibit] with her counsel, that she
agreed with the content of [the] exhibit and that she
agreed to the admission and use of the stipulations [in
___________________(footnotes)
the Army is consistent with the interest of the Army in
proper discipline, good order, and morale.
(5) The officer does not desire to engage in or intend to
engage in homosexual acts."
Pet. App. 6a-7a. The term "[homosexual acts" was defined as
"[blodily contact, actively undertaken or passively permitted,
between members of the same sex for the purpose of satisfying
sexual desires." AR 635-100, Glossary.
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4
the exhibit] by the board." Admin. Rec. 35-36. The
Board admitted the exhibit. Id. at 36.
Based upon the record, the Board found that peti-
tioner had engaged in homosexual acts, and it recom-
mended that she be honorably discharged. Pet. App.
1a-2a. That recommendation was approved by an
Army Board of Review and by the Office of the Secre-
tary of the Army. Id. at 8a-9a.
2. On the date scheduled for her discharge, peti-
tioner filed this action in the United States District
Court for the District of Kansas, seeking to enjoin
her discharge on the ground, inter alia, that it
violated the equal protection component of the Fifth
Amendment. Pet. App. 9a.3 The district court
entered a temporary restraining order, which was
extended with the consent of the parties, requiring
the retention of petitioner on active duty.
The district court later denied petitioner's motion
for a preliminary injunction on the ground that she
was unlikely to succeed on the merits of her
challenge to the discharge. Pet. App. 2a-28a. Peti-
tioner had urged the court to review her equal
protection challenge under the "active" rational-basis
test articulated in Pruitt v. Cheney, 963 F.2d 1160,
1165 (9th Cir.), cert. denied, 113 S. Ct. 655 (1992). Pet.
App. 15a-17a. The government argued for the
rational-basis standard enunciated in Heller v. Doe,
___________________(footnotes)
3. Petitioner also alleged that her discharge violated the
Administrative Procedure Act, the Bill of Attainder Clause,
and the First Amendment. In moving for a preliminary
injunction, she relied only on her equal protection and bill-of-
attainder claims. Pet. App. 9a, 34a-35a. The courts below
rejected both claims. Id. at 22a-27a, 40a-42a. In this Court,
petitioner raises only the equal protection claim.
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5
113 S. Ct. 2637 (1993). Pet. App. 17a-18a. The district
court held (id. 20a-21a) that, "under either test,"
petitioner's equal protection claim was foreclosed by
the Tenth Circuit's decision in Rich v. Secretary of
the Army, 735 F.2d 1220 (1984). The court explained
that the Tenth Circuit in Rich had "held that even if
heightened scrutiny were required, the [former
military] regulations [governing the service of
homosexuals] * * * were nonetheless valid in that
they satisfied a compelling governmental interest in
maintaining the discipline and morale of the armed
forces." Pet. App. 20a.
3. The court of appeals affirmed the denial of
petitioner's motion for a preliminary injunction. Pet.
App. 30a-43a. It held that, in light of Rich, petitioner
had not shown that she was likely to succeed on the
merits of her equal protection claim, or even that
there were "serious, substantial, difficult and doubt-
ful" questions on the merits of that claim. Id. at 37a-
40a.4
ARGUMENT
The courts below correctly held that petitioner has
not shown a likelihood of success on her equal pro-
tection challenge to her discharge from the Army for
engaging in homosexual acts. That holding does not
conflict with any decision of this Court, and it accords
with the decisions of the four other courts of appeals
that have reviewed equal protection challenges in this
setting. Two additional factors counsel against fur-
ther review. This case is in an interlocutory posture,
___________________(footnotes)
4 On September 25, 1995, Justice Breyer denied petitioner's
application for a stay of her discharge.
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6
and it concerns the former, not the current, policy
regarding military service by homosexuals.
1. The decision below accords with those of the
four other circuits that have reviewed, and uniformly
rejected, equal protection challenges to the former
military policy. Steffan v. Perry, 41 F.3d 677, 685
(D.C. Cir. 1994) (en banc); Meinhold v. Department of
Defense, 34 F.3d 1469, 1477-1478 (9th Cir. 1994); Ben-
Shalom v. Marsh, 881 F.2d 454, 461 (7th Cir. 1989),
cert. denied, 494 U.S. 1004 (1990); Woodward v.
United States, 871 F.2d 1068, 1076 (Fed. Cir. 1989),
cert. denied, 494 U.S. 1003 (1990); Dronenburg v.
Zech, 741 F.2d 1388, 1397, 1398 (D.C. Cir. 1984). Those
courts agree, moreover, that the standard of review
applicable in the special military context is the
rational-basis test. Steffan v. Perry, 41 F.3d at 684
n.3; Meinhold v. Department of Defense, 34 F.3d at
1478; Ben-Shalom v. Marsh, 881 F.2d at 464; Wood-
ward v. United States, 871 F.2d at 1076; Dronenburg
v. Zech, 741 F.2d at 1398.
Petitioner argues (Pet. 20-21) that the Ninth
Circuit has applied a more stringent rational-basis
test than did the Tenth Circuit in Rich and this case.
Petitioner bases that argument on the Ninth Cir-
cuit's decision in Pruitt v. Cheney, 963 F.2d 1160,
cert. denied, 113 S. Ct. 655 (1992), which enunciated an
"active" rational-basis test. Petitioner's argument is
incorrect. The Tenth Circuit in Rich held that the
former military policy survived an equal protection
challenge "even if heightened scrutiny were re-
quired." 735 F.2d at 1229. The Tenth Circuit reit-
erated that holding in this case. Pet. App. 39a; see
also id. at 20a-21a (district court decision). Thus, the
Tenth Circuit has made clear that, even under the
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7
more stringent standard of equal protection review
enunciated in Pruitt, it would uphold discharges in
circumstances such as those presented here. Thus,
petitioner cannot establish a conflict between the
judgment below and the Ninth Circuit's decision in
Pruitt.
Moreover, Pruitt conflicts with this Court's later
decision in Heller v. Doe, 113 S. Ct. 2637 (1993).5 And,
significantly, the most recent Ninth Circuit decision
reviewing a discharge under the former policy cor-
rectly applied the rational-basis test set forth in
Heller, not the test set forth in Pruitt. See Meinhold
v. Department of Defense, 34 F.3d at 1478. Thus, it
does not appear that Pruitt represents the law of the
Ninth Circuit.
The courts below were correct in holding that
petitioner failed to demonstrate a likelihood of
success in challenging her discharge on equal protec-
tion grounds. Petitioner stipulated to engaging in
homosexual acts, including acts that constitute
criminal sodomy under 10 U.S.C. 925. See pp. 3-4,
supra. Petitioner does not challenge the validity of
the criminal statute proscribing sodomy. Thus, the
present record would have provided a valid basis for
___________________(footnotes)
5. Pruitt held that "the government [had the burden] to
establish on the record that its policy has a rational basis." 963
F.2d at 1166. In contrast, this Court in Heller held that under
rational-basis review, the government "has no obligation to
produce evidence to sustain the rationality" of the classi-
fication. 113 S. Ct. at 2643. Pruitt relied upon City of Cleburne
v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985), as imposing a
more rigorous "active" standard. 963 F.2d at 1165-1166. Helter,
however, makes clear that Cleburne did not "purport to apply a
different standard of rational-basis" review. 113 S. Ct. at 2643.
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8
prosecuting petitioner under a provision the validity
of which she does not dispute. A fortiori, it furnished
a, rational basis for her discharge. 6.
2. The interlocutory posture of this case also
weighs against further review. See Brotherhood of
Locomotive Firemen v. Bangor & Aroostock R. R.,
389 U.S. 327, 328 (1967); R. Stern, E. Gressman, S.
Shapiro, & K. Geller, Supreme Court Practice 4.18
(7th ed. 1993). The courts below held that petitioner
was unlikely to succeed on the merits of her equal
protection claim. Thus, neither the merits of that
claim nor the standard under which it should be
reviewed is squarely presented by the current
petition. Rather, the only question that can properly
be presented concerns the application of the
likelihood-of-success standard on the present record.
That case-specific question does not merit this
Court's review.
3. Finally, the prospective importance of the
decision below is reduced because this case arises
under the military's former policy regarding military
service by homosexuals. To be sure, the present
statutory policy generally continues the former
regulatory policy mandating discharge for homo-
sexual acts.7 The text of the present statute,
___________________(footnotes)
6. Moreover, petitioner cannot meet the other requirements
for a preliminary injunction. She cannot show that such an
injunction is necessary to avoid irreparable injury (see
Sampson v. Murray, 415 U.S. 61,92 n.68 (1974)); that it would
not harm the military's interest; and that it would be in the
public interest. See 10 U.S.C. 654(a), 654(b)(1); Goldman v.
Weinberger, 475 U.S. 503, 507-509 (1986); Rostker v. Goldberg,
453 U.S. 57,65-66 (1981).
7. The present policy provides:
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9
however, is not identical to that of the former regu-
lation (compare 10 U.S.C. 654(b)(1) (n.7, supra) with
AR 635-100 XIV Par. 5-51a (n.2, supra)), and the
language of the two policies differs in other respects,
such as in the definition of "homosexual act" (com-
pare 10 U.S.C. 654(f)(3) with AR 635-100, Glossary
(n.2, supra)).
___________________(footnotes)
A member of the armed forces shall be separated from the
armed forces under regulations prescribed by the Secre-
tary of Defense if one or more of the following findings is
made and approved in accordance with procedures set
forth in such regulations
(1) That the member has engaged in, attempted to
engage in, or solicited another to engage in a homosexual
act or acts unless there are further findings, made and
approved in accordance with procedures set forth in such
regulations, that the member has demonstrated that-
(A) such conduct is a departure from the
member's usual and customary behavior;
(B) such conduct, under all the circumstances, is
unlikely to recur;
(C) such conduct was not accomplished by use of
force, coercion, or intimidation;
(D) under the particular circumstances of the case,
the member's continued presence in the armed forces
is consistent with the interests of the armed forces in
proper discipline, good order, and morale; and
(E) the member does not have a propensity or
intent to engage in homosexual acts.
10 U.S.C. 654(b).
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10
CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted.
DREW S. Days, III
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
ANTHONY J. STEINMEYER
Attorney
OCTOBER 1995